City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-1
Agreement No.
AGREEMENT
PROJECT NO. 801 0110
PAVEMENT REHABILITATION FOR VARIOUS LOCAL STREETS (CDBG FY 23-24)
This Agreement (hereinafter, this “Agreement”) is made and entered into this _____ day of _____________ 2024 (“Effective Date”), by and between the City of Moreno Valley, a municipal corporation in the County of Riverside, State of California, hereinafter referred to as the “City,” and Hardy & Harper, Inc., hereinafter referred to as “Contractor.”
That the City and the Contractor for the consideration hereinafter named, agree as follows:
1. CONTRACT DOCUMENTS. The Contract Documents consist of the following, which are incorporated herein by this reference:
A. This Agreement
B. Any and all Contract Change Orders and Construction Change Directives issued after execution of this Agreement
C. Addenda Nos. ___4____ inclusive, issued prior to the Bid Deadline D. Federal Provisions and Requirements
E. Any Federal Certifications, documentation, and reports as required, including, but not limited to, Contractor’s Certification on Federal Contract Requirements, Certification of Nonsegregated Facilities , Certification of Equal Employment Opportunity, Certification on Good Faith Efforts Regarding Minority Based Enterprise (MBE) and Women Based Enterprise (WBE), Race and Ethnic Data Reporting Form F. City of Moreno Valley Supplementary General Conditions, if any G. The bound Contract Documents that includes City Special Provisions, General Provisions, and Technical Provisions
H. Standard Specifications for Public Works Construction (“Greenbook”) – latest edition in effect at the Bid Deadline, as modified by the City Special Provisions I. Reference Specifications/Reference Documents other than those listed in paragraph 2, below
J. Project Plans
K. City Standard Plans
L. Caltrans Standard Plans
M. Standard Plans for Public Works Construction
N. Governmental approvals, including, but not limited to, permits required for the Work O. Contractor’s Labor and Materials Payment Bond (for reference only) P. Contractor’s Faithful Performance Bond (for reference only) Q. Contractor’s Certificates of Insurance and Additional Insured Endorsements R. Contractor’s Bid Schedule, Bidder’s Proposal, Subcontractor List, and Material Supplier Listing
In the event of conflict between any of the Contract Documents, the provisions placing a more stringent requirement on the Contractor shall prevail. The Contractor shall provide the better quality or greater quantity of Work and/or materials unless otherwise directed by City in writing.
In the event none of the Contract Documents place a more stringent requirement or greater City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-2
burden on the Contractor, the controlling provision shall be that which is found in the document with higher precedence in accordance with the above order of precedence.
2. REFERENCE DOCUMENTS. The following Reference Documents are not considered Contract Documents and are made available to the Contractor for informational purposes:
A. None
3. SCOPE OF WORK . The Contractor shall perform and provide all materials, tools, equipment, labor, and services necessary to complete the Work described in the Contract Documents, except as otherwise provided in the Plans, Standard Specifications, or City Special Provisions to be the responsibility of others.
4. PAYMENT.
4.1. Contract Price and Basis for Payment. In consideration for the Contractor’s full, complete, timely, and faithful performance of the Work required by the Contract Documents, the City shall pay Contractor for the actual quantity of Work required under the Bid Items awarded by the City performed in accordance with the lump sum prices and unit prices for Bid Items and Additive Alternate Bid Items, if any, set forth the Bid Schedule submitted with the Bid. The sum of the unit prices and lump sum prices for the Base Bid Items and Additive Alternate Bid Items, if any, awarded by the City is Two Million Seven Hundred Thirty- Eight Thousand and 00/100 Dollars ( $2,738,000.00). It is understood and agreed that the quantities set forth in the Bid Schedule for which unit prices are fixed are estimates only and that City will pay and Contractor will accept, as full payment for these items of Work, the unit prices set forth in the Bid Schedule multiplied by the actual number of units performed, constructed, or completed as directed and measured by the City Engineer.
4.2. Payment Procedures. The Contractor agrees that City payments will be received via Automated Clearing House (ACH) Direct Deposit and that the required ACH Authorization form will be completed prior to any payments by the City. Any invoice not paid because the completed ACH Authorization Form has not been provided will not incur any fees, late charges, or other penalties. The ACH Authorization Form is located at:
http://www.moval.org/city_hall/forms.shtml#bf
Based upon applications for payment submitted by the Contractor to the City, the City shall make payments to the Contractor in accordance with Section 7 of the Standard Specifications, as modified by Section 7 of the City Special Provisions.
5. CONTRACT TIME.
A. Initial Notice to Proceed. After the Agreement has been fully executed by the Contractor and the City, the City shall issue the “Notice to Proceed to Fulfill Preconstruction Requirements.” The date specified in the Notice to Proceed to Fulfill Preconstruction Requirements constitutes the date of commencement of the Contract Time of One Hundred and Sixty ( 160) Working Days. The Contract Time includes the time necessary to fulfill preconstruction requirements and to complete construction of the Project (except as adjusted by subsequent Change Orders).
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-3
The Notice to Proceed to Fulfill Preconstruction Requirements shall further specify that Contractor must complete the preconstruction requirements within Ten (10) Working Days after the date of commencement of the Contract Time; this duration is part of the Contract Time.
Preconstruction requirements include, but are not limited to, the following:
• Submitting and obtaining approval of any Traffic Control Plans • Submitting and obtaining approval of the Stormwater Pollution Prevention Plan Program
• Submitting and obtaining approval of critical required submittals • Obtaining an approved no fee Encroachment Permit
• Obtaining a Temporary Use Permit for a construction yard • Notifying all agencies, utilities, residents, etc., as outlined in the Contract Documents • Completion of all pre-construction activities under Environmental Mitigations
If the City’s issuance of a Notice to Proceed to Fulfill Preconstruction Requirements is delayed due to Contractor’s failure to return the fully executed Agreement and insurance and bond documents within ten (10) Working Days after Contract award, then Contractor agrees to the deduction of one (1) Working Day from the number of days to complete the Project for every Working Day of delay in the City’s receipt of said documents. This right is in addition to and does not affect the City’s right to demand forfeiture of Contractor’s Bid Security if Contractor persistently delays in providing the required documentation.
B. Notice to Proceed with Construction. After all preconstruction requirements are met and materials have been ordered in accordance with the Notice to Proceed to Fulfill Preconstruction Requirements, the City shall issue the “Notice to Proceed with Construction,” at which time the Contractor shall diligently prosecute the Work, including corrective items of Work, day to day thereafter, within the remaining Contract Time.
6. LIQUIDATED DAMAGES AND CONTROL OF WORK.
6.1. Liquidated Damages. The Contractor and City (collectively, the “Parties”) have agreed to liquidate damages with respect to Contractor’s failure to complete the Work within the Contract Time, which includes the time necessary to fulfill preconstruction requirements and to complete construction of the Project (except as adjusted by subsequent Change Orders) in accordance with Article 5 above. The Parties intend for the liquidated damages set forth herein to apply to this Contract as set forth in Government Code Section 53069.85 and in Public Contract Code Section 7203 . Contractor acknowledges and agrees that the liquidated damages are intended to compensate the City solely for Contractor’s failure to meet the deadlines for completion of the Work and will not excuse Contractor from liability from any other breach, including any failure of the Work to conform to the requirements of the Contract Documents.
In the event that Contractor fails to complete the Work within the Contract Time, Contractor agrees to pay the City $500.00 per Calendar Day that completion of the each such portion of the Work is delayed beyond the Contract Time. The Contractor will not be assessed liquidated damages for delays occasioned by the failure of the City or of the owner of a utility to provide for the removal or relocation of utility facilities.
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-4
The Contractor and City acknowledge and agree that the foregoing liquidated damages have been set based on an evaluation of damages that the City will incur in the event of late completion of portions of the Work. The Contractor and City acknowledge and agree that the amount of such damages are impossible to ascertain as of the date of execution hereof and have agreed to such liquidated damages to fix the City’s damages and to avoid later disputes. It is understood and agreed by Contractor that liquidated damages payable pursuant to this Agreement are not a penalty and that such amounts are not manifestly unreasonable under the circumstances existing as of the date of execution of this Agreement.
It is further mutually agreed that the City will have the right to deduct liquidated damages against progress payments or retainage and that the City will issue a Change Order or Construction Change Directive and reduce the Contract Price accordingly. In the event the remaining unpaid Contract Price is insufficient to cover the full amount of liquidated damages, Contractor shall pay the difference to the City.
Liquidated damages are owed automatically and without notice of any kind upon the accrual of each day of delay. City may at any time deduct liquidated damages as are payable hereunder from money due or to become due to Contractor, or pursue any other legal remedy to collect such liquidated damages from Contractor and/or its Surety. Neither the City's failure or delay in deducting liquidated damages from payments otherwise due Contractor, nor City's failure or delay in notifying Contractor of the accrual of liquidated damages, shall be deemed a waiver of City's right to liquidated damages.
City's rights under this Section shall not be interpreted as precluding or limiting: (1) any right or remedy of City arising from an event of Contractor default other than a failure to complete the Work within the Contract Time; or (2) City's right to order an acceleration, at Contractor's expense, of performance of the Work to overcome delay, including, without limitation, a delay for which City has the right to assess and/or accrue liquidated damages. The availability of liquidated damages shall not limit City's right to terminate the Contractor’s performance and accrual and/or assessment of liquidated damages does not constitute a waiver of such rights.
6.2. Owner is Exempt from Liability for Early Completion Delay Damages. While the Contractor may schedule completion of all of the Work, or portions thereof, earlier than the Contract Time, the Owner is exempt from liability for and the Contractor will not be entitled to an adjustment of the Contract Sum or to any additional costs, damages, including, but not limited to, claims for extended general conditions costs, home office overhead, jobsite overhead, and management or administrative costs, or compensation whatsoever, for use of float time or for Contractor’s inability to complete the Work earlier than the Contract Time for any reason whatsoever, including but not limited to, delay cause by Owner or other Excusable Compensable Delay. See Section 6 -4 of the Standard Specifications and City Special Provisions regarding compensation for delays.
6.3. Any work completed by the Contractor after the issuance of a Stop Work Notice by the City shall be rejected and/or removed and replaced as specified in Section 3-5 of the City Special Provisions.
7. INSURANCE.
7.1. General. The Contractor shall procure and maintain at its sole expense and throughout the term of this Agreement, any extension thereof, Commercial General Liability, City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-5
Automobile Liability, and Workers’ Compensation Insurance with such coverage limits as described herein.
7.2. Additional Insured Endorsements . The Contractor shall cause the insurance required by the Contract Document to include the City of Moreno Valley, the City Council and each member thereof, the Moreno Valley Housing Authority, and the Moreno Valley Community Services District and their respective officials, employees, commission members, officers, directors, agents, employees, volunteers and representatives as an additional insureds. For the Commercial General Liability coverage, said parties shall be named as additional insureds utilizing either:
1. Insurance Services Office (“ISO”) Additional Insured endorsement CG 20 10 (11/85); or
2. ISO Additional Insured endorsement CG 20 10 (10/01) and Additional Insured Completed Operations endorsement CG 20 37 (10/01); or
3. Substitute endorsements providing equivalent coverage, approved by the City.
The endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf. The coverage shall contain no special limitations on the scope of protection afforded to such additional insureds. Coverage for such additional insureds does not extend to liability to the extent prohibited by Insurance Code Section 11580.4.
7.3. Waivers of Subrogation. All policies of insurance required by the Contract Documents shall include or be endorsed to provide a waiver by the insurers of any rights of recovery or subrogation that the insurers may have at any time against the City of Moreno Valley, the City Council and each member thereof, the Moreno Valley Housing Authority, and the Moreno Valley Co mmunity Services District and their respective officials, employees, commission members, officers, directors, agents, employees, volunteers, and representatives.
7.4. Primary Coverage . All policies and endorsements shall stipulate that the Contractor’s (and the Subcontractors’) insurance coverage shall be primary insurance as respects the City of Moreno Valley, the City Council and each member thereof, the Moreno Valley Housing Authority, and the Moreno Valley Community Services District and their respective officials, employees, commission members, officers, directors, agents, employees, volunteers , and representatives, and shall be excess of the Contractor’s (and its Subcontractors’) insurance and shall not contribute with it.
7.5. Coverage Applies Separately to Each Insured and Additional Insured.
Coverage shall state that the Contractor’s (and its Subcontractors’) insurance shall apply separately to each insured or additional insured against whom claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Coverage shall apply to any claim or suit brought by an additional insured against a named insured or other insured.
7.6. Self-Insurance. Any self -insurance (including deductibles or self -insured retention in excess of $50,000) in lieu of liability insurance must be declared by Contractor and approved by the City in writing prior to execution of the Agreement. The City’s approval of self- insurance, if any, is within the City’s sole discretion and is subject to the following conditions:
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-6
1. Contractor must, at all times during the term of the Agreement and for a period of at least one (1) year after completion of the Project and any extension of the one-year correction guarantee period in accordance with Section 3-13.3 of the City Special Provisions, maintain and upon Owner’s reasonable request provide evidence of:
(a) Contractor’s “net worth” (defined as “total assets” [defined as all items of value owned by the Contractor including tangible items such as cash, land, personal property , and equipment , and intangible items such as copyrights and business goodwill]) minus total outside liabilities must be reflected in a financial statement for the prior fiscal year reflecting sufficient income and budget for Contractor to afford at least one loss in an a mount equal to the amount of self-insurance;
(b) Financial statements showing that Contractor has funds set aside/budgeted to finance the self-insured fund (i.e., Contractor has a program that fulfills functions that a primary insurer would fill); and
(c) A claims procedure that identifies how a claim is supposed to be tendered to reach the financing provided by the self-insured fund.
2. If at any time after such self-insurance has been approved, the Contractor fails to meet the financial thresholds or otherwise fails to comply with the provisions set forth in this Paragraph 7, at the option of the City:
(a) The Contractor shall immediately obtain and thereafter maintain the third party insurance required under this Paragraph 7 and otherwise on the terms required above; or
(b) The insurer shall reduce or eliminate such deductibles or self - insured retention as respects the City, its officers, officials, employees, and volunteers; or
(c) The Contractor shall procure a bond guaranteeing payment of losses and related investigation, claim administration, and defense expenses.
7.7. Insurer Financial Rating. Insurance companies providing insurance hereunder shall be rated A-VII or better in Best's Insurance Rating Guide and shall be legally licensed and qualified to conduct insurance business in the State of California.
7.8. Notices to City of Cancellation or Changes . Each insurance policy described in this Paragraph 7 shall contain a provision or be endorsed to state that coverage will not be cancelled without thirty (30) days’ prior written notice by certified or registered mail to the City (this obligation may be satisfied in the alternative by requiring such notice to be provided by Contractor’s insurance broker and set forth on its Certificate of Insurance provided to the City), except that cancellation for non- payment of premium shall require (10) days prior written notice by certified or registered mail. If an insurance carrier cancels any policy or elects not to renew any City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-7
policy required to be maintained by Contractor pursuant to the Contract Documents, Contractor agrees to give written notice to the City at the address indicated on the first page of the Agreement. Contractor agrees to provide the same notice of cancellation and non-renewal to the City that is required by such policy(ies) to be provided to the First Named Insured under such policy(ies). Contractor shall provide confirmation that the required policies have been renewed not less than seven (7) days prior to the expiration of existing coverages and shall deliver renewal or replacement policies, certificates and endorsements to the City Clerk within fourteen (14) days of the expiration of existing coverages. Contractor agrees that upon receipt of any notice of cancellation or alteration of the policies, Contractor shall procure within five (5) days, other policies of insurance similar in all respects to the policy or policies to be cancelled or altered. Contractor shall furnish to the City Clerk copies of any endorsements that are subsequently issued amending coverage or limits within fourteen (14) days of the amendment.
7.9. Commercial General Liability. Coverage shall be written on an ISO Commercial General Liability “occurrence” form CG 00 01 (10/01 or later edition) or equivalent form approved by the City for coverage on an occurrence basis. The insurance shall cover liability, including, but not li mited to, that arising from premises operations, stop gap liability, independent contractors, products -completed operations, personal injury, advertising injury, and liability assumed under an insured contract. The policy shall be endorsed to provide the Aggregate Per Project Endorsement ISO form CG 25 03 (11/85). Coverage shall contain no contractors’ limitation or other endorsement limiting the scope of coverage for liability arising from pollution, explosion, collapse, or underground (x, c, u) property damage. Contractor shall provide Products/Completed Operations coverage to be maintained continuously for a minimum of one (1) year after Final Acceptance of the Work , and any extension of the one- year correction guarantee peri od in accordance with Section 3-13.3 of the City Special Provisions.
Contractor shall maintain Commercial General Liability insurance with the following minimum limits: $1,000,000 per occurrence / $2,000,000 aggregate / $2,000,000 products -completed operations.
7.10. Business Automobile Liability. Coverage shall be written on ISO form CA 00 01 (12/93 or later edition) or a substitute form providing equivalent coverage for owned, hired, leased and non-owned vehicles, whether scheduled or not, with $1,000,000 combined single limit per accident for bodily injury and property damage. If necessary, the policy shall be endorsed to provide contractual liability coverage.
7.11. Workers’ Compensation. Contractor shall comply with the applicable sections of the California Labor Code concerning workers’ compensation for injuries on the job. Compliance is accomplished in one of the following manners:
1. Provide copy of permissive self-insurance certificate approved by the State of California; or
2. Secure and maintain in force a policy of workers’ compensation insurance with statutory limits and Employer’s Liability Insurance with a minimal limit of $1,000,000 per accident; or
3. Provide a “waiver” form certifying that no employees subject to the Labor Code’s Workers’ Compensation provision will be used in performance of this Contract.
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-8
7.12. Subcontractors’ Insurance. The Contractor shall include all Subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each Subcontractor. All coverages for Subcontractors shall be subject to all of the requirements stated herein.
8. BONDS. The Contractor shall provide two surety bonds. The Contractor shall furnish a satisfactory Performance Bond meeting all statutory requirements of the State of California on the form provided by the City. The bond shall be furnished as a guarantee of the faithful performance of the requirements of the Contract Documents as may be amended from time to time, including, but not limited to, liability for delays and damages (both direct and consequential) to the City and the City’s Separate Contractors and consultants, warranties, guarantees, and indemnity obligations, in an amount that shall remain equal to one hundred percent (100%) of the Contract Price.
The Contractor shall furnish a separate satisfactory Labor and Materials Payment Bond meeting all statutory requirements of the State of California on the form provided by the City in an amount that shall remain equal to one hundred percent (100%) of the Contract Price to secure payment of all c laims, demands, stop payment notices, or charges of the State of California, of material suppliers, mechanics, or laborers employed by the Contractor or by any Subcontractor, or any person, form, or entity eligible to file a stop payment notice with respect to the Work.
All bonds shall be executed by a California-admitted surety insurer. Bonds issued by a California- admitted surety insurer listed on the latest version of the U.S Department of Treasury Circular 570 shall be deemed accepted unless specifically rejected by the City. Bonds issued by sureties not listed in Treasury Circular 570 must be accompanied by all documents enumerated in California Code of Civil Procedure Section 995.660(a). The bonds shall bear the same date as the Contract. The attorney-in-fact who executes the required bonds on behalf of the surety shall affix thereto a certified and current copy of the power of attorney. In the event of changes that increase the Contract Price, the amount of each bond shall be deemed to increase and at all times remain equal to the Contract Price. The signatures shall be acknowledged by a notary public.
Every bond must display the surety’s bond number and incorporate the Contract for construction of the Work by reference. The terms of the bonds shall provide that the surety agrees that no change, extension of time, alteration, or modification of the Contract Documents or the Work to be performed thereunder shall in any way affect its obligations and shall waive notice of any such change, extension of time, alter ation, or modification of the Contract Documents. The surety further agrees that it is obligated under the bonds to any successor, grantee, or assignee of the City.
Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall authorize a copy to be furnished.
Should any bond become insufficient, or should any of the sureties, in the opinion of the City, become non-responsible or unacceptable, the Contractor shall, within ten (10) Calendar Days after receiving notice from the City, provide written documentation to the Satisfaction of the City that Contractor has secured new or additional sureties for the bonds; otherwise the Contractor shall be in default of the Contract. No further payments shall be deemed due or will be made under Contract until a new surety(ies) qualifies and is accepted by the City.
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-9
Contractor agrees that the Labor and Materials Payment Bond and Faithful Performance Bond attached to this Agreement are for reference purposes only, and shall not be considered a part of this Agreement. Contractor further agrees that said bonds are separate obligations of the Contractor and its Surety, and that any attorney’s fee provision contained in any payment bond or performance bond shall not apply to this Agreement. In the event there is any litigation between the parties arising from the breach of this Agreement, each party will bear its own attorneys’ fees in the litigation.
9. RECORDS. The Contractor and its Subcontractors shall maintain and keep books, payrolls, invoices of materials, and Project records current, and shall record all transactions pertaining to the Contract in accordance with generally acceptable accounting principles. Said books and records shall be made available to the City of Moreno Valley, Riverside County, the State of California, the Federal Government, and to any authorized representative thereof for purposes of audit and inspection at all reasonable ti mes and places. All such books, payrolls, invoices of materials, and records shall be retained for at least five (5 ) years after Final Acceptance.
10. INDEMNIFICATION.
10.1. General. To the fullest extent permitted by law, the Contractor assumes liability for and agrees, at the Contractor’s sole cost and expense, to promptly and fully indemnify, protect, hold harmless and defend (even if the allegations are false, fraudulent, or groundless), the City of Moreno Valley, its City Council, the Moreno Valley Housing Authority , and the Moreno Valley Community Services District, and all of their respective officials, officers, directors, employees, commission members, representatives and agents (“Indemnitees”), from and against any and all claims, allegations, actions, suits, arbitrations, administrative proceedings, regulatory proceedings, or other legal proceeds, causes of action, demands, costs, judgments, liens, stop payment notices, penalties, liabilities, damages, losses, anticipated losses of revenues, and expenses (including, but not limited to, any fees of accountants, attorneys, experts or other professionals, or investigation expenses), or losses of any kind or nature w hatsoever, whether actual, threatened or alleged, arising out of, resulting from, or in any way (either directly or indirectly), related to the Work, the Project or any breach of the Contract by Contractor or any of its officers, agents, employees, Subcont ractors, Sub-subcontractors, or any person performing any of the Work, pursuant to a direct or indirect contract with the Contractor (“Indemnity Claims”).
Such Indemnity Claims include, but are not limited to, claims for:
A. Any activity on or use of the City’s premises or facilities; B. Any liability incurred due to Contractor acting outside the scope of its authority pursuant to the Contract, whether or not caused in part by an Indemnified Party;
C. The failure of Contractor or the Work to comply with any Applicable Law, permit or orders;
D. Any misrepresentation, misstatement or omission with respect to any statement made in the Contract Documents or any document furnished by the Contractor in connection therewith;
E. Any breach of any duty, obligation or requirement under the Contract Documents, including, but not limited to any breach of Contractor’s warranties, representations or agreements set forth in the Contract Documents;
F. Any failure to coordinate the Work with City’s Separate Contractors; City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-10
G. Any failure to provide notice to any party as required under the Contract Documents;
H. Any failure to act in such a manner as to protect the Project from loss, cost, expense or liability;
I. Bodily or personal injury, emotional injury, sickness or disease, or death at any time to any persons including without limitation employees of Contractor;
J. Damage or injury to real property or personal property, equipment and materials (including, but without limitation, property under the care and custody of the Contractor or the City) sustained by any person or persons (including, but not limited to, companies, corporations, utility company or property owner, Contractor and its employees or agents, and members of the general public);
K. Any liability imposed by Applicable Law including, but not limited to criminal or civil fines or penalties;
L. Any dangerous, hazardous, unsafe or defective condition of, in or on the Site, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the Site by Contractor, its officers, agents, employees, or Subcontractors;
M. Any operation conducted upon or any use or occupation of the Site by the Contractor, its officers, agents, employees, or Subcontractors under or pursuant to the provisions of the Contract or otherwise; N. Any acts, errors, omission or negligence of Contractor, its officers, agents, employees, or Subcontractors;
O. Infringement of any patent rights, licenses, copyrights , or intellectual property which may be brought against the Contractor or Owner arising out of Contractor’s Work, for which the Contractor is responsible; and P. Any and all claims against the City seeking compensation for labor performed or materials used or furnished to be used in the Work or alleged to have been furnished on the Project, including all incidental or consequential damages resulting to the City from such claims.
10.2. Effect of Indemnitees’ Active Negligence. Contractor’s obligations to indemnify and hold the Indemnitees harmless exclude only such portion of any Indemnity Claim which is attributable to the active negligence or willful misconduct of the Indemnitee, provided such active negligence or willful misconduct is determined by agreement of the parties or by findings of a court of competent jurisdiction. In instances where an Indemnitee’s active negligence accounts for only a percentage of the liability for the Indemnity Claim involved, the obligation of Contractor will be for that entire percentage of liability for the Indemnity Claim not attributable to the active negligence or willful misconduct of the Indemnitee(s). Such obligation shall not be construed to negate, abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Paragraph 10. Subject to the limits set forth herein, the Contractor, at its own expense, shall satisfy any resulting judgment that may be rendered against any Indemnitee resulting from an Indemnity Claim. The Indemnitees shall be consulted with regard to any proposed settlement.
10.3. Independent Defense Obligation. The duty of the Contractor to indemnify and hold harmless the Indemnitees includes the separate and independent duty to defend the Indemnitees, which duty arises immediately upon receipt by Contractor of the tender of any Indemnity Claim from an Indemnitee. The Contractor’s obligation to defend the Indemnitee(s) City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-11
shall be at Contractor’s sole expense, and not be excused because of the Contractor’s inability to evaluate liability or because the Contractor evaluates liability and determines that the Contractor is not liable. This duty to defend shall apply whether o r not an Indemnity Claim has merit or is meritless, or which involves claims or allegations that any or all of the Indemnitees were actively, passively, or concurrently negligent, or which otherwise asserts that the Indemnitees are responsible, in whole or in part, for any Indemnity Claim. The Contractor shall respond within thirty (30) Calendar Days to the tender of any Indemnity Claim for defense and/or indemnity by an Indemnitee, unless the Indemnitee agrees in writing to an extension of this time. The defense provided to the Indemnitees by Contractor shall be by well qualified, adequately insured and experienced legal counsel acceptable to the City.
10.4. Intent of Parties Regarding Scope of Indemnity. It is the intent of the parties that the Contractor and its Subcontractors of all tiers shall provide the Indemnitees with the broadest defense and indemnity permitted by Applicable Law. In the event that any of the defense, indemnity , or hold harmless provisions in the Contract Docu ments are found to be ambiguous or in conflict with one another, it is the parties’ intent that the broadest and most expansive interpretation in favor of providing defense and/or indemnity to the Indemnitees be given effect.
10.5. Waiver of Indemnity Rights Against Indemnitees. With respect to third party claims against the Contractor, to the fullest extent permitted by law, the Contractor waives any and all rights to any type of express or implied indemnity against the Indemnitees.
10.6. Subcontractor Requirements. In addition to the requirements set forth hereinabove, Contractor shall ensure, by written subcontract agreement, that each of Contractor’s Subcontractors of every tier shall protect, defend, indemnify and hold harmless the Indemnitees with respect to Indemnity Claims arising out of, in connection with, or in any way related to each such Subcontractors’ Work on the Project in the same manner in which Contractor is required to protect, defend, indemnify and hold the Indemnitees harmless. In the event Contractor fails to obtain such defense and indemnity obligations from others as required herein, Contractor agrees to be fully responsible to the Indemnitees according to the terms of this Paragraph 10.
10.7. No Limitation or Waiver of Rights. Contractor’s obligations under this Paragraph 10 are in addition to any other rights or remedies which the Indemnitees may have under the law or under the Contract Documents. Contractor’s indemnification and defense obligations set forth in this Paragraph 10 are separate and independent from the insurance provisions set forth in the Contract Documents, and do not limit, in any way, the applicability, scope, or obligations set forth in such insurance provisions. The purchase of insurance by the Contractor wit h respect to the obligations required herein shall in no event be construed as fulfillment or discharge of such obligations. In any and all claims against the Indemnitees by any employee of the Contractor, any Subcontractor, any supplier of the Contractor or Subcontractors, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable, the obligations under this Paragraph 10 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Contractor or any Subcontractor or any supplier of either of them, under workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts. Failure of the City to monitor compliance with these requirements imposes no additional obligations on the City and will in no way act as a waiver of any rights hereunder.
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-12
10.8. Withholding to Secure Obligations. In the event an Indemnity Claim arises prior to final payment to Contractor, the City may, in its sole discretion, reserve, retain or apply any monies due Contractor for the purpose of resolving such Indemnity Claims; provided, however, the City may release such funds if the Contractor provides the City with reasonable assurances of protection of the Indemnitees’ interests. The City shall, in its sole discretion, determine whether such assurances are reasonable.
10.9. Survival of Indemnity Obligations. Contractor’s obligations under this Paragraph 10 are binding on Contractor’s and its Subcontractors’ successors, heirs, and assigns and shall survive the completion of the Work or termination of the Contractor’s performance of the Work.
11. FEDERAL REQUIREMENTS. If the Contractor or Subcontractor is performing work on Section 3, Housing and Urban Development Act of 1968, projects for which the amount of the assistance exceeds $200,000 and the contract or subcontract exceeds $100,000:
11.1 The work to be performed under this contract is funded in whole or in part with federal funds. Accordingly, federal labor standards provisions including prevailing wage requirements of the Davis -Bacon and Related Acts (DBRA) will be enforced. In the event of a conflict between Federal and State prevailing wage rates, the higher of the two will prevail.
11.2 The work to be performed under this contract is subject to the requirements of Section 3 of the Housing and Urban Development Act of 1968, as amended, 12 U.S.C. 1701u (Section 3). The purpose of S ection 3 is to ensure that employment and other economic opportunities generated by HUD assistance or HUD-assisted projects covered by Section 3, shall, to the greatest extent feasible, be directed to low - and very low -income persons, particularly persons who are recipients of
government assistance for housing or residents of the community in which the Federal assistance is spent. .
11.3 The parties to this contract agree to comply with HUD’s regulations in 24 CFR part 75, which implements Section 3. As evidenced by their execution of this contract, the parties to this contract certify that they are under no contractual or other impediment that would prevent them from complying with the part 75 regulations.
11.4 The contractor agrees to send to each labor organization or representative of workers with which the contractor has a collective bargaining agreement or other understanding, if any, a notice advising the labor organization or workers’ representative of the contractor’s commitments under this Section 3 clause, and will post copies of the notice in conspicuous places at the work site where both employees and applicants for training and employment positions can see the notice. The notice shall describe the S ection 3 preference, shall set forth minimum number and job titles subject to hire, availability of apprenticeship and training positions, the qualifications for each; and the name and location of the person(s) taking applications for each of the positions; and the anticipated date the work shall begin.
11.5 The contractor agrees to include this Section 3 Clause in every subcontract subject to compliance with regulations in 24 CFR part 75, and agrees to take appropriate action, as provided in an applicable provision of the subcontract or in this Section 3 Clause, upon a finding that the subcontractor is in violation of the regulations in 24 CFR part 75. The contractor will not subcontract with any subcontractor where the contractor has notice or knowledge that the subcontractor has been found in violation of the regulations in 24 CFR part 75.
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-13
11.6 The contractor will certify that any vacant employment positions, including training positions, that are filled (1) after the contractor is selected but before the contract is executed, and (2) with persons other than those to whom the regulations of 24 CFR part 75 require employment opportunities to be directed, were not filled to circumvent the contractor’s obligations under 24 CFR part 75.
11.7 Noncompliance with HUD’s regulations in 24 CFR part 75 may result in sanctions, termination of this contract for default, and debarment or suspension from future HUD assisted contracts.
11.8 With respect to wor k performed in connection with S ection 3 cove red Indian housing assistance, Section 7(b) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450e) also applies to the work to be performed under this contract. Section 7(b) requires that to the greatest extent feasible (i) preference and opportunities for training and employment shall be given to Indians, and (ii) prefe rence in the award of contracts and subcontracts shall be given to Indian organizations and Indian- owned Economic Enterprises.
Parties to this contract that ar e subject to the provisions of Section 3 and S ection 7(b) agree to comply with Section 3 to the maximum extent feasible, but not in derogation o f compliance with Section 7(b).
11.8 Section 3 Compliance Clause. To the greatest extent feasible, the Contractor and subrecipients shall ensure that employment and training opportunities arising in connection with this project are provided to Section 3 workers residing within the area in which the project is located. Priority for these opportunities should be given to (i) Section 3 workers residing within the service area or the neighborhood of the project, and (ii) participants in YouthBuild programs.
Additionally, the Contractor shall ensure that contracts for work awarded in connection with this project are provided to business concerns that provide economic opportunities to Section 3 workers residing within the area in which the project is located. P riority for these contracting opportunities should be given to (i) Section 3 business concerns that provide economic opportunities to Section 3 workers residing within the service area or the neighborhood of the project, and (ii) participants in YouthBuild programs. The Contractor agrees to comply with all applicable provisions of 24 CFR Part 75.19.
12. THE BUILD AMERICA, BUY AMERICA ACT (BABA) The Build America, Buy America Act (BABA) was signed into law by President Biden on November 15, 2021, as part of the Infrastructure Investment and Jobs Act (IIJA) as Sections 70901- 52 of Pub. L. No. 117 -58. In addition to providing funding for roads, bri dges, rails, and high-speed internet access, it created an incentive to increase domestic manufacturing across the country through the inclusion of BABA’s “Buy America Preference” (BAP). In general, the BAP requires that all iron, steel, manufactured products, and construction materials used in infrastructure projects funded with Federal financial assistance (FFA), as outlined in Section 70914(a) of BABA, must be produced in the United States. The intent of the BAP in BABA is to stimulate private -sector investments in domestic manufacturing, bolster critical supply chains, and support the creation of well -paying jobs for people in the United States. The preference is also intended to bolster American firms’ ability to compete and lead globally for years to c ome by requiring entities that receive Federal infrastructure funds to use American materials and products. The BABA preference for American materials and products applies to all spending on infrastructure projects by Federal agencies, including HUD. In BABA and for purposes of this Notice, the Federal infrastructure spending with City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-14
a BAP is referred to as “Federal financial assistance” or “FFA.” Under Section 70912(7), FFA for infrastructure "projects” includes the “construction, alteration, maintenance, or repair of infrastructure in the United States”. Under Section 70914(a), the use of American iron and steel, construction materials, and manufactured products applies to funding from CPD programs for infrastructure projects. However, the BAP does not apply to “pre and post disaster or emergency response expenditures” under Section 70912(4)(B). A list of CPD disaster or emergency funding meeting these criteria can be found in Section III.
13. TERMINATION FOR CAUSE AND FOR CONVENIENCE: (B) ALL CONTRACTS IN EXCESS OF $10,000 MUST ADDRESS TERMINATION FOR CAUSE AND FOR
CONVENIENCE BY THE NON -FEDERAL ENTITY INCLUDING THE MANNER BY WHICH IT WILL BE EFFECTED AND THE BASIS FOR SETTLEMENT.
14. SUCCESSORS AND ASSIGNS. The Parties bind themselves, their heirs, executors, administrators, successors and assigns the covenants, agreements and obligations contained in the Contract Documents. The Contractor shall not, either voluntarily or by action of law, assign any right or obligation of the Contractor under the Contract Documents without prior written consent of the City.
(SIGNATURE PAGE FOLLOWS)
City of Moreno Valley
Project No. 801 0110
Standard Form of Agreement
00500-15
CITY OF MORENO VALLEY, a Municipal Corporation Hardy & Harper, Inc.
BY: License No./
Mike Lee, City Manager Classification:
DATE: Expiration Date:
Federal I.D. No.:
PRINT NAME:
SIGNATURE:
TITLE:
DATE:
PRINT NAME:
SIGNATURE:
TITLE:
DATE:
SIGNING INSTRUCTIONS TO THE CONTRACTOR:
Signature(s) must be accompanied by a completed notary certificate of acknowledgement attached hereto. A general partner must sign on behalf of a partnership. Two (2) corporate officers must sign on behalf of a corporation unless the corporation has a corporate resolution that allows one person to sign on behalf of the corporation; if applicable, said resolution must be attached hereto. The corporate seal may be affixed hereto.
INTERNAL USE ONLY
APPROVED AS TO LEGAL FORM:
City Attorney
Date
RECOMMENDED FOR APPROVAL:
Public Works Director/City Engineer
Date